Bombay High Court
Dr. Pratidnya Jayesh Shinde vs Appropriate Authority on 4 December, 2013
Author: Abhay M. Thipsay
Bench: Abhay M. Thipsay
(1)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
AURANGABAD BENCH, AT AURANGABAD.
Criminal Application No. 3044 of 2012
1. Dr. Pratidnya Jayesh Shinde,
Age : 32 years,
Occupation : Medical Practitioner,
R/o. Sukhanjani Hospital,
Station Road, Amalner,
District : Jalgaon.
2. Dr. Rahul Sudhirchandra Shinde,
Age : - ,
Occupation : Radiologist,
R/o. 22, Markand Diagnostic Centre,
4th Lane, Dhule, District : Dhule. .. Applicants.
versus
1. Appropriate Authority,
Dr. Rameshchandra Kisan Savkare,
Age : 56 years,
Occupation : Medical Practitioner,
Rural Hospital, Amalner,
District : Jalgaon.
2. The State of Maharashtra,
Through APP, High Court of
Bombay, Bench at Aurangabad. .. Respondents.
.......................
Mr. B.R. Warma, Advocate, for the applicants.
Mrs. Anuradha S. Mantri, Advocate, for the
respondent no.1 (Absent).
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(2)
Mr. S.R. Palnitkar, Additional Public Prosecutor,
for the respondent no.2.
........................
CORAM : ABHAY M. THIPSAY, J.
DATE : 4TH DECEMBER 2013
ORAL JUDGMENT :
1. Heard Mr. B.R. Warma, the learned Counsel for the applicants. Heard Mr. S.R. Palnitkar, the learned Additional Public Prosecutor, for the respondent no.2.
2. Since it was mentioned to me that, Mrs. Mantri appears for the respondent no.1 i.e. the appropriate authority, the matter was kept back repeatedly, for enabling her to remain present and make submissions, opposing the Application. However, inspite of keeping the matter back repeatedly, and even after it is called out in the afternoon session, Mrs. Mantri is absent. As such, the Application is being decided after going through the same, the annexures thereto, and after hearing Mr. Warma, the learned Counsel for the applicants, and Mr. Palnitkar, the learned APP for the respondent no.2.
3. Rule. By consent, Rule is made returnable forthwith. By consent, heard finally.
4. The applicants are the accused nos.2 and 3, respectively, in ::: Downloaded on - 23/12/2013 20:32:34 ::: (3) Regular Criminal Case No. 7 of 2012, pending before the Judicial Magistrate (First Class), Amalner [District : Jalgaon]. The allegation against them is that, they have committed offences under Sections 4(3), 5, 6, 29, read with Section 28 of the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 [hereinafter referred to as "the PCPNDT Act"], and Rules 9(1)(4), 10(1-A) of the Rules framed thereunder, read with Sections 23 and 25 of the PCPNDT Act. There are totally three accused in the said case, and the accused no.1 is Dr. Jayesh @ Gulab Sukdevrao Shinde, husband of the applicant no.1 herein.
The applicants contended before the Magistrate that, the accusation levelled against them was groundless, and prayed for discharge as contemplated under Section 245(2) of the Code of Criminal Procedure, 1973. The said application was rejected by the learned Magistrate, by his order dated 15-6-2012.
Being aggrieved thereby, the applicants have approached this Court, invoking its inherent powers, praying that, the prosecution against them be quashed.
5. I have carefully gone through the complaint and other annexures to the Application.
6. Admittedly, the hospital known as 'Sukhanjani Hospital' is run and owned by the accused no.1 - Dr. Jayesh Shinde. The said hospital is having a Sonography Centre registered under the provisions of the PCPNDT Act. It is not in dispute that, all the accused, including the applicants, are medical practitioners.
::: Downloaded on - 23/12/2013 20:32:34 ::: (4)7. If the complaint is seen, the allegations against the applicants are as follows :-
(a) That, the applicant no.1 is not a qualified medical practitioner to handle sonography machine.
The applicant no.2 is also not qualified or authorized to handle sonography machine. However, inspite of that, the applicants used to handle sonography machine and conduct sonography on patients.
(b) That, the record, as required under the provisions of the PCPNDT Act, and the Rules framed thereunder, was not properly maintained. That, the reports in respect of medical termination of pregnancy and sonography were found to be not tallying with each other and there were some differences.
(c) That, in one "F" form, certain relevant details were not filled in, and the portion was left blank.
8. As regards the lack of qualifications on the part of the applicants, to handle sonography machine, Mr. Warma, the learned Counsel for the applicants, submitted that, this allegation is baseless, and that, that it is baseless, is borne out from the record maintained by the appropriate authority itself. He has drawn my attention to a copy of the ::: Downloaded on - 23/12/2013 20:32:34 ::: (5) letter issued by the District Civil Surgeon, Jalgaon, to the Medical Superintendent, Rural Hospital, Amalner, clarifying that, the applicants have been authorized to handle the sonography machine. A copy of this letter is annexed to the petition as Exhibit "D". The existence and/or genuineness of this letter is not in question or under challenge. As a matter of fact, even in the application for discharge preferred by the applicants before the Magistrate, this point was taken, and the Additional Public Prosecutor, while opposing the said application, had conceded that, the Advisory Committee headed by the Civil Surgeon had taken the decision to permit the applicants to operate sonography machine held by the accused no.1 in his hospital. Mr. Warma has drawn my attention to the say filed by the Additional Public Prosecutor, while opposing the application for discharge made by the accused persons, wherein the learned Additional Public Prosecutor, after conceding on this point, strangely added as follows :
" However, considering the
seriousness of the offence,
application is objected and obliged."
9. Even in the order dated 15-6-2012, passed by the Magistrate, the Magistrate clearly accepted the position that, that the the applicants were not authorized or qualified to handle sonography machine, was not correct. The Magistrte, however, was of the view that, there were certain other allegations against them, also. Holding so, he rejected the discharge application. The fact, however, remains that the allegation about the applicants being not authorized or qualified to handle sonography ::: Downloaded on - 23/12/2013 20:32:34 ::: (6) machine, is clearly erroneous, and that, that it is so, is borne out from the record available with the appropriate authority itself.
10. The second allegation is, in substance, about non-maintaining of the records in the required forms. Admittedly, the hospital and the sonography centre is owned and run by the accused no.1 - Dr. Jayesh Shinde. Obviously, the responsibility of maintaining the record would be cast upon him. The complaint is silent, as to on what basis the responsibility of maintaining the requisite records in a hospital and sonography centre run and owned by the accused no.1 had fallen on the applicants herein. These allegations have been taken into consideration by the Magistrate, against the applicants, for rejecting their application for discharge.
11. Clearly, for the alleged non-maintenance of the record and contravention of the Rules, the applicants cannot be held responsible. At the cost of repetition, it may be observed that, the complaint is silent as to on what basis this responsibility is cast upon the applicants or any of them. Moreover, a perusal of the complaint itself indicates that, actually the allegations are levelled only against the accused no.1. There are averments in the complaint, wherein there is reference simpliciter to 'accused', without qualifying the reference by any accused number. The complaint speaks of 'hospital of the accused' where 'he' is running 'his' Sonography Centre, etc. The complaint also speaks of the complainant and his team having inquired with the accused that, 'he' is conducting ultrasound sonography. Thus, the use of singular expression makes it clear that, the allegation is only against Dr. Jayesh Shinde, who has now been ::: Downloaded on - 23/12/2013 20:32:34 ::: (7) referred as the accused no.1 in the complaint.
12. The allegation against the applicants is baseless and without any substance. When such is the position, the prosecution against them cannot be permitted to be continued. It would be in the interest of justice, to quash the prosecution of the applicants.
13. The Criminal Application is allowed in terms of prayer clause "B". Rule is made absolute accordingly.
ig ( ABHAY M. THIPSAY )
JUDGE
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bgp/cria3044
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